The FCC says it wants to take a look at the legal and First Amendment …

The fallout keeps raining down from the San Francisco Bay Area rail transit system's controversial move to block cell phone access during a protest demonstration. Now the Federal Communications Commission says that the agency will probe Bay Area Rapid Transit's new "Cell Service Interruption Policy," which promises more temporary mobile service interruptions under "extraordinary circumstances."

On Thursday "BART took an important step in responding to legitimate concerns raised by its August 11, 2011 interruption of wireless service," FCC Chair Julius Genachowski noted in his press statement. But "the legal and policy issues raised by the type of wireless service interruption at issue here are significant and complex," he added.

And so Genachowski says that Commission staff will take a look at the issue to "consider the constraints that the Communications Act, First Amendment, and other laws and policies place upon potential service interruptions." Looks like some kind of proceeding, possibly a Notice of Inquiry, is on the way.

Pulling a Mubarak?

Sure enough, on August 11, 2011 BART caused a veritable uproar by interrupting cell phone access during a demo protesting the fatal shooting of several passengers by BART police. This blockage provoked the ire of Anonymous, which issued a public call for yet another protest, held five days later.

We covered that demonstration. The BART move was "unacceptable," one protestor told us. "That's the kind of stuff that happens in places like Egypt, where Mubarak did it to put down the protests, and Tunisia, where the dictator did it to put down protests. That should not be happening here in the United States."

BART didn't interrupt phone service during that subsequent action. But the agency defended its earlier signal hiatus, and now has laid out new rules. BART gets all the concerns about public safety and the First Amendment, the policy preamble explains. Mobile phone service should be interrupted "only in the most extraordinary circumstances that threaten the safety of District passengers."

Thus, it shall be the policy of BART to implement "a temporary interruption of operation" of its System Cellular Equipment, only:

when it determines that there is strong evidence of imminent unlawful activity that threatens the safety of District passengers,
employees and other members of the public, the destruction of District property, or the substantial disruption of public transit services;

that the interruption will substantially reduce the likelihood of such unlawful activity; that such interruption is essential to protect the safety of District passengers, employees and other members of the public, to protect District property or to avoid substantial disruption of public transit services;

and that such interruption is narrowly tailored to those areas and time periods necessary to protect against the unlawful activity.

Any judgment call to implement this kind of blockage must be part of a determination that "the public safety benefits outweigh the public safety risks of an interruption," the policy advisory concludes.

Substantial disruption

Note the use of the modifier "imminent" placed in front of the phrase "unlawful activity," suggesting that BART will shut down cell phone access not just if something that it deems bad is happening, but if it thinks that something unacceptable is about to happen. Here is the rail service's definition of "extraordinary circumstances":

strong evidence of use of cell phones (i) as instrumentalities in explosives; (II) to facilitate violent criminal activity or endanger District passengers, employees or other members of the public, such as hostage situations; (iii) to facilitate specific plans or attempts to destroy District property or substantially disrupt public transit services.

During that second demo, we noticed some protesters standing between the doors of an outbound BART train. A scuffle between BART police and the demonstrators held up departure for some minutes. A big question is whether BART would define that as a bid to "substantially disrupt public transit services."

No surprise that this ball has pinged to the FCC's court. Section 333 of the US Code makes things pretty clear. "No person shall willfully or maliciously interfere with or cause interference to any radio communications of any station licensed or authorized by or under this chapter or operated by the United States Government."

But Genachowski's commentary suggests that he or his staff see some leeway in the matter. "For interruption of communications service to be permissible or advisable, it must clear a high substantive and procedural bar," the FCC's Chair says.

The Commission's deliberation on this conundrum will include "an open, public process to provide guidance on these issues," the statement adds. This is a big deal, because as BART Board President Bob Franklin notes in his press statement, whatever gets worked out between BART and the FCC (and survives lawsuits) could wind up becoming the national template for public transportation cell phone interruption.

"This policy, with input from the Federal Communications Commission, and the American Civil Liberties Union, will serve as a pioneering model for our nation, as a reference to other public agencies that will inevitably face similar dilemmas in the future," Franklin promises.

40 Reader Comments

I'm not sure that the Section 333 of the U.S. Code as cited matters here. Turning off repeaters that you own is different than actively interfering with communications between tower and handset.

I am sensitive to the issue that BART is a quasi-governmental body and, as such, should be held to a different standard than a private entity would. But because of that, I think the important legal framework for this discussion is 1st Amendment law, not FCC law/regulation.

During that second demo, we noticed some protesters standing between the doors of an outbound BART train. A scuffle between BART police and the demonstrators held up departure for some minutes. A big question is whether BART would define that as a bid to "substantially disrupt public transit services."

Is there a question about the motives of protesters standing between the doors? On the face of it, it seems apparent that their motive is indeed to prevent the BART from providing transit, which is a "substantial disruption to public transit services."

So yes, BART would likely include that in their definition.

article wrote:

No surprise that this ball has pinged to the FCC's court. Section 333 of the US Code makes things pretty clear. "No person shall willfully or maliciously interfere with or cause interference to any radio communications of any station licensed or authorized by or under this chapter or operated by the United States Government."

But Genachowski's commentary suggests that he or his staff see some leeway in the matter. "For interruption of communications service to be permissible or advisable, it must clear a high substantive and procedural bar," the FCC's Chair says.

I think you missed a political angle here. BART operates the BART district, which is presumably established by California state statute. BART has its own police officers - ie instead of city of San Francisco police they are Bay Area Rapid Transit District police. BART arguably has the authority of the state government to enforce this policy.

Except that the FCC rules are federal, which are outside of BART jurisdiction.

But if the FCC tries to take a hard position against BART, without evidence that BART's disruption of service interferes with signals outside of the borders of California, then it becomes a constitutional issue of the state's right to police its people versus the federal governments right to control wireless spectrum within the boundaries of a state.

So this seems to be a political move on the part of the FCC to head off the issue through negotiation.

The Alabama Supreme Court ruled in People v. Brophy that citizens of Alabama have a right to use a telephone.

In the 50's, the Citizens for Public Safety of Tuscalosa Alabama had identified a person who had used a telephone to commit a crime and had the telephone company disconnect his phone. So now, in Alabama you can't do that no more.

If BART is a government owned and operated business, then the repeaters are public use repeaters and do indeed fall directly under FCC jurisdiction. They cannot be turned off except for reasons laid out by the FCC.

The FCC pretends to investigate, taxpayer dollars get wasted on inquiries, committees, etc.

The FCC says, "Hey look, we got them to change some cosmetic detail.(which was included just to be cut) The rest of it stands, but since they relented on this one thing it's totally cool and in the public interest. A victory for the 1st amendment."

I love the dichotomy we have going on today. Malls want people to have all the cellphone time they can get, so they can anon track the signals to analyze shopping patterns. BART wants the ability to squelch cell communications as they see fit. Opposite ends of the spectrum. The 21st century is off to an amazing start in precedences.

About 7:45 in the author explains that "Lincoln was a politician, he was a lawyer, he was working within a political system under a constitution ... he believed in the political system." He goes on to explain that Lincoln's plan before the civil war was to get the states to consent, which was the only way to do so legally under the constitution despite his hatred of slavery, and in sharp contrast to abolitionists like William Lloyd Garrison who burned the constitution insisting (without support) that it was a contract with the devil.

Lincoln respected and supported the authority of the states even for something as hateful as slavery, not because he supported the states, but because he believed in the Constitution and due process.

Abraham 'Crazy Hair' Lincoln wrote:

and that government [US Government] of the people, by the people, for the people, shall not perish from the earth.

Well, if BART secedes from the Union, perhaps Lincoln will rise from the grave to lead the nation in a war to reunite the choo-choo with us.

AnthonyInVA wrote:

What "the government" owns belongs to the people, regardless of what they'd wish you to believe.

Which people? The lawful ones trying to ride the train or the lawless ones interfering with their rights to do so?

I'm not sure that the Section 333 of the U.S. Code as cited matters here. Turning off repeaters that you own is different than actively interfering with communications between tower and handset.

I am sensitive to the issue that BART is a quasi-governmental body and, as such, should be held to a different standard than a private entity would. But because of that, I think the important legal framework for this discussion is 1st Amendment law, not FCC law/regulation.

If that's the case, wouldn't this also apply to cell towers that are owned by others? Or is it the fact that the repeaters are owned by a quasi-governmental entity that makes a difference?

The same Lincoln that unilaterally suspended the writ of habeas corpus? Despite the fact constitution gave that power to congress, not the president? The same Lincoln that ignored court's ruling when he didn't get his way?

I am not criticizing Lincoln here. But I think it's fair to say Lincoln is of the "The constitution is not a suicide pack" camp.

It's Section 333 of the Title 47 of the United States Code, or 47 USC 333 is you want it short. Namespace/Scope is just as important in legal citaiton as they are in programming.

Black's Law Dictionary define "interference" as "The act of meddling in another's affairs.

There are certainly more than one reasonable reading of Section 333. But I think it's reasonable to argue that FCC have jurisdiction under Section 333 only if other license holder's broadcasts are being negatively impacted by BART's decision to shut down their own equipment. There may also be some other issues, such as conditions attached when the FCC license was issued, etc.

There is Muni as well, its quite large actually. Used it myself while in college since SF charges more for parking then the minimum wage.

As to the topic at hand, BART provides the signal ability for the convenience of their customers, if that signal is going to inconvenience those customers, then they should be able to stop providing it. It is a cost they are incurring for a purpose. Unless the Federal Government wants to put out a national wireless system and cover the cost of it, they can STFU and the let the local entities get back to work actually helping people.

I'm a licensed amateur radio operator. In order to get on the air, I must own my own equipment. But owning my own equipment does not give me the right to use it any way I see fit. I must abide by the restrictions of my license and within the rules set forth by the FCC. I'm not required to operate my station, but if I do, I must still operate it within the limits set forth by the FCC. Those rules set out both limitations AND responsibilities.

If I own a repeater and it is open to any other amateur, I cannot turn it off whenever a particular person uses it simply because I disagree with their political views or because I think they will say something that I don't like. I cannot even do so if I think they will use my repeater to commit a crime. Thinking that someone might commit a crime is not the same as them actually committing a crime. The police cannot legally arrest you because they suspect that you are about to commit a crime. You must actually commit the crime or threaten to commit a crime before they can arrest you. (Threatening to commit a crime is itself a crime.) That would constitute deliberate interference with communications.

BART is not required to operate cell phone repeaters. But since they choose to do so, they are required to abide by the same rules as any other licensee. Those rules transfer responsibility to BART for not interfering with the use of the repeaters they operate. It does not matter that they own the equipment. They are nonetheless required to operate that equipment without interfering with the communications of others.

It has been stated that the demonstrators are breaking the law by interfering with BART operations. That is true. But it is just as true that BART is breaking the law by interfering with cell phone service. They are not just interfering with the communications of protesters. They are also interfering with the communications of ordinary, non-protesting, commuters. Even if they could selectively block the communications of just the signals coming from the cell phones of protesters, doing so pre-emptively would still constitute interference. "[S]trong evidence of imminent unlawful activity" is just a long-winded way of saying the verb "suspect". BART wants simple suspicion that a crime will be committed to pass as justification for deliberate interference with communications, and not just the communications of suspected future criminals, but with everyone else using their repeaters, too.

While we're at it, why not throw everyone in jail we think will commit a crime in the future. That way, everyone will be kept safe. That is essentially BART's argument and justification for their actions.

As to the topic at hand, BART provides the signal ability for the convenience of their customers, if that signal is going to inconvenience those customers, then they should be able to stop providing it.

The protest was under way, the disruption of BART services was under way, what sort of additional organization did BART fear so much as to disconnect the cell service? Did BART truly think that an additional flash mob would appear because protesters could tweet in station? And what did it get BART? Additional protests about free speech! The response was really ill thought out and achieved nothing. I'd really hate people staking positions on a case where the response was just idiotic. Yeah protest disruptions can be annoying, but a poor response almost always emboldens the protestors.

SF Muni has a subway tunnel above BART but below Market street. It also operates the Twin Peaks Tunnel which is the longest streetcar tunnel in the world connecting the Castro, Forest Hill, and West Portal stations.

Unless the Federal Government wants to put out a national wireless system and cover the cost of it, they can STFU and the let the local entities get back to work actually helping people.

When you deploy wireless you must abide by FCC regulations, you don't get to pick and choose. Same for any other Federally controlled system. e.g. States don't get to selectively observe FAA regs either.

SF Muni has a subway tunnel above BART but below Market street. It also operates the Twin Peaks Tunnel which is the longest streetcar tunnel in the world connecting the Castro, Forest Hill, and West Portal stations.

SF Muni has a subway tunnel above BART but below Market street. It also operates the Twin Peaks Tunnel which is the longest streetcar tunnel in the world connecting the Castro, Forest Hill, and West Portal stations.

Isn't it more likely that BART just leases space to the cellular provider that than BART owning the gear?

I'm not sure how repeaters got in the discussion. I can't tell you that the T-mob sites look like any other tower in the system, other than T-mob only provides EDGE underground. I have software on my phone to identify towers.

"Note the use of the modifier "imminent" placed in front of the phrase "unlawful activity," suggesting that BART will shut down cell phone access not just if something that it deems bad is happening, but if it thinks that something unacceptable is about to happen."

I think your definition of the word use "imminent" is somewhat improperly applied. For law enforcement use the word "imminent" is applied to the use of force in some manner and means "right now - this moment in time" that something IS HAPPENING which leads to a reasonable belief that if it isn't stopped an action/event WILL occur. Use of force can be any reasonable means that prevents the action thats reasonably believed will happen from continuing to progress to the reasonably believed outcome. So its not really they think something unacceptable is about to happen, but rather something is happening this moment in time that leads to a reasonable belief that something will happen. Your definition implies anytime they want because they "think" something is about to happen and thats not correct as the application of the word "imminent" for law enforcement is dictated by the situation and not the other way around because they want to do it. I think your definition somewhat slews the article and biases it to some extent.

While we're at it, why not throw everyone in jail we think will commit a crime in the future. That way, everyone will be kept safe. That is essentially BART's argument and justification for their actions.

So this seems to be a political move on the part of the FCC to head off the issue through negotiation.

Edit: even more so if BART owns the repeaters

People on BART attempting to make calls using those repeaters are using a *national* telecoms system and might well be trying conduct interstate or even international communications. Aside from the fact that use of EM spectrum is generally governed by FCC and federal rules.

As to the topic at hand, BART provides the signal ability for the convenience of their customers, if that signal is going to inconvenience those customers, then they should be able to stop providing it. It is a cost they are incurring for a purpose. Unless the Federal Government wants to put out a national wireless system and cover the cost of it, they can STFU and the let the local entities get back to work actually helping people.

I'm not sure about BART, but I believe in DC the *carriers* pay to have repeaters in the Metro system. Do you have a link to documentation that BART is paying for this?

"... in sharp contrast to abolitionists like William Lloyd Garrison who burned the constitution insisting (without support) that it was a contract with the devil."

Um, exactly what kind of support were you looking for? A notarized statement from the Founding Fathers and the devil?

Well, I'm pretty convinced that the US Constitution is not actually a contract with the devil, so it would be a pretty high bar for supporting evidence. That would be a promising start, but a claim so bold would require an amazing level of scrutiny to the authentication of the document and the identity of its signers. So much so that I imagine it would take a few independent teams of about a dozen scientists and their army of hapless grad students and tens of millions of dollars of forensic laboratory equipment each just to ascertain mere plausibility. I suspect this would take more scrutiny even then authenticating the shroud of Turin or the dead sea scrolls.

I mean, *if* its the *actual* devil on the notarized statement. If its merely a signatory of the devil that's far more believable.

Why do you ask? Have you seen such a statement?

rochefort wrote:

blueeyes wrote:

So this seems to be a political move on the part of the FCC to head off the issue through negotiation.

Edit: even more so if BART owns the repeaters

People on BART attempting to make calls using those repeaters are using a *national* telecoms system and might well be trying conduct interstate or even international communications. Aside from the fact that use of EM spectrum is generally governed by FCC and federal rules.

So how is this merely a "political move"?

Well, "merely" is your word. Conveniently you quoted me which makes it easy for me to double check what I wrote. I'm not sure I am ready to commit to "merely" yet. That's a serious step! But that's ok, I don't think I need to.

How would the FCC talking with the district of BART about police action it took with the possible side effect that it might have prevented alleged interstate communications on an alleged 3rd party owned *private* telecoms system **NOT** be a political move? Aside from the fact that an alleged contradiction between FCC and federal rules governing EM spectrum and state police action would fall under the scope of the Tenth Amendment.

"... in sharp contrast to abolitionists like William Lloyd Garrison who burned the constitution insisting (without support) that it was a contract with the devil."

Um, exactly what kind of support were you looking for? A notarized statement from the Founding Fathers and the devil?

Well, I'm pretty convinced that the US Constitution is not actually a contract with the devil, ...

Why do you ask? Have you seen such a statement?

I ask because you implied that it was *possible* that it was a contract with the devil by indicating that the charge by Garrison was without support. I would say that it is *impossible*, and the charge is either metaphorical (most likely) or ridiculous, and the issue of support is pointless.

How would the FCC talking with the district of BART about police action it took with the possible side effect that it might have prevented alleged interstate communications on an alleged 3rd party owned *private* telecoms system **NOT** be a political move? Aside from the fact that an alleged contradiction between FCC and federal rules governing EM spectrum and state police action would fall under the scope of the Tenth Amendment.

I think that the FCC looking into potential violations of its regulations by *anyone*, including a state agency, can be regarded as *necessarily* political only if you regard any action by a government agency as political.

IMO, the FCC would be abdicating their duty if they didn't investigate the BART police's actions and policy regarding cellular transmissions.

Matthew Lasar / Matt writes for Ars Technica about media/technology history, intellectual property, the FCC, or the Internet in general. He teaches United States history and politics at the University of California at Santa Cruz.